Nu-Way Mobile Home Manufacturing, Inc.

Plain-English summary

Nu-Way built mobile homes from the ground up on an assembly line, and OSHA cited the general-industry personal-protective-equipment rule after employees worked on a roof without safety belts. The Commission held that the work was construction because the nature of the work, not its factory location, controlled the classification. Construction standards specifically addressed fall protection, so the cited general-industry standard did not apply. The Commission declined to amend the pleadings to allege a construction-standard violation because the issue had not been tried by consent and Nu-Way had not had an opportunity to address amendment and prejudice. Commissioner Rader dissented, viewing factory-built mobile homes as manufacturing rather than construction.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.12, 29 C.F.R. § 1910.132(a), and 29 C.F.R. § 1926.28(a)
• Outcome: General-industry fall-protection citation item vacated.
• Key point: Assembly-line work can be construction when its nature is construction, but the Commission will not substitute a construction standard unless amendment of the pleadings is proper.

Full text (OSHRC public release)

Docket No. 80-7082

SECRETARY OF LABOR,

Complainant,

v.

NU-WAY MOBILE HOME MANUFACTURING, INC.,

Respondent.

OSHRC Docket No. 80-7082

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
� 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ��
651-678 ("the Act"). The Commission is an adjudicatory agency, independent of
the Department of Labor and the Occupational Safety and Health Administration. It was
established to resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the
Act, 29 U.S.C. � 659(c).

Administrative Law Judge E. Carter Botkin affirmed one item of a citation issued by the
Secretary to Nu-Way Mobile Home Manufacturing Company ("Nu-Way"). The item
alleged that, contrary to 29 C.F.R. � 1910.132(a), Nu-Way's employees had not worn safety
belts to protect against a fall hazard while working on the roof of a mobile home. Nu-Way
makes the threshold argument that because its employees are engaged in construction work,
general industry standards do not apply to its workplace. We conclude that Nu-Way's
employees are engaged in construction work and that the general industry standard cited by
the Secretary is not applicable.

At Nu-Way's facility mobile homes are constructed from the ground up as they move down
an assembly line. The operation appears to be similar in all respects to that described in
Cardinal Industries, Inc., No. 82-0427 (December 6, 1985), pet. for rev. filed, No.
86-3094 (6th Cir. Jan. 31, 1986). In Cardinal, housing modules were constructed from the
ground up by carpenters, roofers, electricians, and plumbers as they moved down an
assembly line. In finding that the work being performed at Cardinal's plant was
"construction work" within the meaning of section 1910.12,[[1]] we held that the
nature of the work rather than its location determines whether it is "construction
work" within the meaning of section 1910.12. Slip op. at 6. The Secretary's arguments
here that such assembly line work is not "construction work" were rejected in
Cardinal. The facts here warrant no different result. We therefore conclude that Nu-Way's
operation is "construction work" within the meaning of section 1910.12.

We also find that, as in Cardinal, there are construction standards specifically
applicable to the danger of falling in the process or operation of construction within the
meaning of section 1910.5(c)(1), (for example, 1926. 28(a), 1926.451(u)(3), or
1926.105(a), under appropriate circumstances). These standards, among others requiring
protection from falls, represent the considered decision of the Secretary as to the
circumstances under which there is an obligation of the employer in the construction
industry to provide protection from falls as well as the methods of protection feasible in
a construction context. Indeed, the Secretary takes the position in his brief that, if
Nu-Way's operation is construction, then 1926.28(a) is an applicable standard and alleges
its violation. We need not address whether this standard or any of these standards would
have been violated here, because we find amendment under Rule 15(b) of the Federal Rules
of Civil Procedure inappropriate in this case.

Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings may be amended to
conform to the evidence when an issue not raised by the pleadings has been tried by
express or implied consent of the parties. Chairman Buckley would not amend here because
there was no express consent to try whether section 1926.28(a) had been violated. He would
not find implied consent because he does not find that Nu-Way squarely recognized that
violation of section 1926.28(a) was in issue, much less that it consented to try that
issue. See McWilliams Forge Co., 84 OSARHC ___, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD
� 26,979, p. 34,669 (No. 80- 5868, 1984). Commissioner Wall also would not amend, sua
sponte, in the absence of an opportunity for Nu-Way to argue whether amendment is
appropriate and whether it would be prejudiced. Therefore, the Commission will not amend
the pleadings to allege a violation of section 1926.28(a).

Accordingly, item 1 of citation 2 is vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: February 4, 1986

RADER, Commissioner, dissenting:

I respectfully dissent from the majority's decision to vacate the citation on the
ground that a construction standard, rather than the general industry standard cited by
the Secretary, applies to the cited condition. The facts of this case are
indistinguishable from those of Cardinal Industries, Inc., No. 82-0427 (December 6, 1985).
pet. for review filed, No. 86-3094 (6th Cir. Jan. 31, 1986). As with the modular housing
units involved in Cardinal, Nu-Way builds its mobile homes in a factory setting, away
from, and having no direct connection with, the actual site to which the mobile homes will
be transported and where they will be eventually occupied. For the reasons set forth in my
dissenting opinion in Cardinal, I conclude that Nu-Way was not engaged in construction
within the meaning of 29 C.F.R. � 1910.12(b), and that therefore the general industry
standards are applicable.[[1]]

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 1910.12 provides in part:

� 1910.12 Construction work.

(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as
occupational safety and health standards under section 6 of the Act and shall apply,
according to the provisions thereof, to every employment and place of employment of every
employee engaged in construction work.

(b) Definition. For purposes of this section, "construction work" means work for
construction, alteration, and/or repair, including painting and decorating. See discussion
of these terms in � 1926.13 of this title.

[[1]] The Standard Industrial Classification Manual, which classifies all American
industry, lists "Mobile Homes" under number 2451 of its manufacturing index.
Office of Management and Budget, Standard Classification Manual 93 (1972). As I stated in
Cardinal, I consider the Standard Classification Manual to be relevant and to provide
guidance in classifying Nu-Way's business activities.